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Airport Cmtys. Coal. v. Graves - 280 F. Supp. 2d 1207 (W.D. Wash. 2003)

Rule:

Section 401 (33 U.S.C.S. § 1341) of the Clean Water Act requires that the United States Army Corps of Engineers incorporate only those state certification conditions issued within a year of issuing the notice of the request for certification.

Facts:

As part of its Master Plan Update ("MPU") to the Seattle-Tacoma International Airport, the Port of Seattle has proposed the construction of an 8,500 foot third runway and related improvements collectively known as the Third Runway Project ("3RW Project"). The proposed project requires 23.64 million cubic yards of fill, and will fill all or portions of 50 wetlands. Before such filling takes place, however, the Army Corps of Engineers must first issue a Clean Water Act ("CWA") Section 404 permit to the Port. 33 U.S.C. § 1344.

On December 13, 2002, the Army Corps of Engineers issued such a permit to the Port. Plaintiff Airport Communities Coalition ("ACC") immediately filed this suit seeking judicial review under the Administrative Procedures Act, 5 U.S.C. §§ 701-706. The parties agreed that no work would proceed on the project pending the outcome of this case. The parties have now moved for summary judgment. The parties also have moved to strike various extra-record submissions. The coalition contended that the Corps' decision to issue the permit was arbitrary and capricious because the Corps failed to incorporate into the permit various conditions placed on the project by the state Pollution Control Hearing Board (PCHB); the Corps failed to issue a supplemental environmental impact statement regarding new information about future aircraft operations at the airport and possible arsenic contamination of the topsoil in the project area; and the Corps failed to conduct an adequate public interest review before issuing the § 404 permit.

Issue:

Was the Army Corps of Engineers obligated to adopt all of state Pollution Control Hearing Board additional conditions before issuing a permit under the Clean Water Act?

Answer:

No

Conclusion:

The Court held that Section 401(33 U.S.C.S. § 1341) required that the Corps incorporate only those state certification conditions issued within a year of issuing the notice of the request for certification; therefore, the Corps was not obligated to adopt all of PCHB's additional conditions. Given that the environmental consequences had not changed, the underlying statements were adequate despite new information challenging the cost basis for the project as a whole. The Corps did not improperly determine that no supplemental impact statement was necessary based on the coalition's new information. An adequate public interest review was conducted.

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